Articles Tagged withOAG

In the District of Columbia, the Office of the Attorney General (OAG) is responsible for prosecuting DUIs and it takes this job very seriously. While other jurisdictions routinely offer favorable deals for DUI offenders, DC rarely does. What that means is that often times you would be no better off pleading guilty than you would be if you took the case to trial and lost. Your best bet at beating a DUI conviction is going to trial and holding the government to its burden of proof. To be convicted of a DUI, the government must prove that you were (1) operating a motor vehicle (2) while under the influence of alcohol or drugs. While two elements may not seem like much to prove for the government, there are numerous ways to challenge the evidence against you on both elements.

The first element of the DUI offense is the trickiest element to challenge because DC law has a broad definition of what it means to operate a motor vehicle. Operate is defined as actual physical control over the vehicle. Physical control means capable of putting the vehicle into movement or preventing movement. If you were pulled over and the police witnessed you driving, it is hard to say you were not operating the vehicle.

The penalty for second offenses in the District of Columbia for DUI’s and DWI’s include a mandatory minimum jail term of ten days. It’s the only misdemeanor crime in the District of Columbia that carries mandatory minimum jail time. To give you a sense of how serious DC treats DUI second offenses: you could be convicted of assaulting a police officer and destroying property while possessing illegal drugs and the judge could still give you straight probation. On the other hand, you could have a DUI conviction from 14 years ago and get convicted for another DUI where you got pulled over for failing to use a turn signal and blew a .09. In the latter scenario, the judge must sentence you to at least 10 days in jail. The judge will also likely sentence you to a period of supervised probation for one year or more.

The last post discussed some of the background involved in the District of Columbia’s problems it had with its Breathalyzer program. The Metropolitan Police Department not only miscalibrated the machines to read 40 percent higher than they were supposed to but also failed to conduct accuracy testing for a period of almost ten years. As I discussed in Part I, I started an appeal in 2013 for a person who had plead guilty to DUI and served mandatory jail time based on breath scores for a machine that had not been accuracy tested.

Through another attorney he had tried to move to withdraw his guilty plea. The government vigorously contested his motion. While the government had agreed to allow hundreds of people to withdraw guilty pleas that plead or were found guilty during the 17 month period the machines were miscalibrated, it did not want to open up Pandora’s Box for ten years of convictions in which MPD failed to conduct accuracy testing. Unfortunately, the trial judge agreed and denied the motion without a hearing. After I filed my brief, it took the government one year to respond. I did not ask the Court of Appeals to allow my client to withdraw his guilty plea. Rather, I argued that the trial court had abused its discretion by not having a hearing on the motion.

This entry is part two of a three part series explaining what diversion is in the District of Columbia. The first part discussed the Deferred Prosecution Agreement or “DPA.” Part II discusses a Deferred Sentencing Agreement or “DSA.” A DSA is similar to a DPA in that the government will require the person accused of a crime to jump through a series of hoops in exchange for ultimately dropping the charges. Both the US Attorney’s Office for the District of Columbia or USAO and the DC Office of the Attorney General or OAG offer DSA as a pretrial diversion option in limited circumstances.

For the DC crimes charged by the USAO, the criteria for a DSA is very similar to its criteria for a DPA. A person must drug test negative to qualify for a DSA. If the person’s first drug test is negative, then that will satisfy the requirement. However, if the first test is positive, then the person must drug test until he or she gets two consecutive negative tests. Usually, a prosecutor will offer a DSA instead of a DPA for somewhat arbitrary reasons. It could be a prior conviction in the person’s background or something related to a complaining witness in the case. A DSA is still a good deal in most cases. However, it requires the person plead guilty where a DPA does not.

In DC criminal law, people often ask what diversion is. This post is the first part in a three part series that answers that question. Diversion is a program offered by the prosecution where when an individual meets certain conditions, the government will dismiss the charges against that person. Several types of diversion programs exist in DC. Having a criminal defense lawyer who can explain the diversion options is important when you are charged with a crime in DC. Before understanding what type of diversion options exist, its important to know the difference between the two government agencies in DC that prosecute crimes.

As previously mentioned, the DC Office of the Attorney General (OAG) prosecutes only traffic misdemeanors. The United States Attorney’s Office for the District of Columbia (USAO) prosecutes all other misdemeanors and felony crimes. Felonies are crimes that carry a maximum penalty of more than one year in jail. That difference is important in and deserves further discussion in a future post. The United States Attorney’s Office has more flexibility in diversion programs and also has more options with more reasonable requirements. So, the first couple of posts on this topic will discuss diversion options the USAO offers. I will discuss the OAG’s diversion police in a later post for those primarily concerned with options when they get a DC DUI.

In the Washington, DC criminal defense world, a common scenario occurs where an individual gets pulled over by the police, arrested for DUI, and charged with two cases. This scenario occurs when someone gets pulled over, the officer arrests the person for DUI, and later finds drugs in the vehicle—regardless of whether the drugs actually belong to the person arrested.

In most jurisdictions, that person would get charged for two crimes: drug possession and DUI. In DC, however, the person will not only get two charges but have two criminal cases against them. Two separate law enforcement agencies will prosecute each case. The DC Office of the Attorney General will prosecute the DUI, and the United States Attorneys’ Office for the District of Columbia will prosecute the drug possession charge. It is common for one set of facts to lead to a prosecution for two separate charges. But DC criminal law is unique that the same set of facts can lead to prosecution for two separate cases.